Tennenbrock v. South Pacific Coast Railroad

McKee, J.: Appeal from a judgment of nonsuit in an action to recover damages for personal injuries caused, as alleged, by the negligent and careless management of an engine and train of cars by officers of the respondent.

The evidence upon which the appellant, and plaintiff in the action, rested his right to recover, showed that, about November 26th, 1879, the respondent had constructed its roadway from the Santa Clara Valley up a rough canyon in the Santa Cruz range of mountains, winding around the curves of the mountain to the mouth of a tunnel under the crest of the mountain, at a few feet from which the company had established a station known as Wright’s Station. About a mile from this station, coming down to the Santa Clara Valley, part of the roadway was a trestle, two hundred and seventy-seven feet long and thirty-five feet high, spanning a ravine near the end of a curve of the mountain. As the [270]tunnel under the crest of the mountain was unfinished, trains were run over the road only as far as Wright’s Station.

A day or two before the accident to the appellant, an explosion had taken place in the tunnel which killed many of the men at work in it, and destroyed property in and about it; and a day or two after the explosion the appellant and a companion, both of whom lived near the line of the railroad, started up the canyon to go to “Wright’s” for the purpose of seeing the effects of the explosion. They traveled afoot, all the way up, over the roadway of the respondent; and as they met with no trains on the way they arrived safely at “Wright’s.” After satisfying their curiosity they started from “Wright’s” between three and four o’clock in the afternoon of the same day, to return home by the same way they came—traveling afoot down the mountain over the railroad. Before starting they saw three or four cars and an engine at “Wright’s.” But, thinking that no more trains were to be run over the road that day, they asked no questions of any one on the subject. On their way down they got about half way over the trestle when they heard the sound of a train coming from “Wright’s;” and on looking back they saw the train rounding the curve on the trestle, without sounding a whistle. At first they attempted to run to the end of the trestle, but, •finding they could not escape in that way, they left the track clear for the train, by swinging themselves over the guard rails of the trestle, and in this pendent position over the ravine, they maintained themselves until the train passed. It passed without injuring them, and the appellant’s companion pulled himself up on to the trestle and’ went to the assistance of the appellant, but he, although aided by his companion, was unable to get up, and he fell over the rocks below in the ravine, receiving from the fall serious personal injuries. And it is contented in his behalf that, because the officers of the respondent started the train from Wright’s Station and it ran down the grade on to the trestle, without sounding a whistle, they were guilty of negligence, which caused the injuries to the appellant.